Assisted living facility plan loses ZBA vote

Sunday

Oct 28, 2012 at 3:15 AM

Not often do earthshaking events occur here, but on Oct. 16 the Zoning Board of Adjustment’s continuance of a public hearing was interrupted by the 4.0 magnitude earthquake centered near Hollis, Maine.

The hearing involved Sara and Albert Nadeau’s application for a variance to Article V, Section 2 of the zoning ordinances. They seek to establish an assisted living facility on Knox Marsh Road (Route 155), on land owned by Jason Berndtson, which is grandfathered commercial in the Residential/Agricultural zone. The application has been several months working its way first to the Planning Board, which granted site review approval, and since has lingered with the ZBA through several postponed hearings.

The variance is needed because this facility would be a change in use from the previous non-commercial use.

The variance was denied by the ZBA on a 4 to 1 vote. Chairman Gray Cornwell and members Don Sylvester, Ric Ericson, and Alan Monroe carried the vote, with Bill Taylor favoring the plan. Alternate Jim Kach took part in the discussion but not in the vote, the board being restricted to five votes.

Several townspeople, including one abutter, spoke out against the application, with several suggesting that a decision of such magnitude should be made by vote of theTown Meeting. They cited the town’s Master Plan which calls for retaining the local rural character and argued that such a facility is not needed, worrying about what would replace it should it fail.

Two residents defended the plan, citing the fact that in the neighborhood under discussion there exist other grandfathered commercial enterprises, as well as major traffic, with one opining that, “It would be an improvement on what’s there now.”

Bruce Hodsdon, who is the selectmen’s representative to the Planning Board, reported that the selectmen, when meeting with the potential developers of the facility in a preliminary discussion last spring, thought the assisted living facility could be a reasonable use, since the land is in commercial use, and predicting that such a facility could satisfy a need within the town. He pointed out that the zoning ordinances guarantee that should the facility fail, any other suggested use would have to go before the Planning Board.

Attorney Scott Hogan, representing the Nadeaus, lamented that there were few negative comments at any of the three hearings held by the Planning Board. He pointed out that this land has been used commercially since the 1950s.

Attorney John Ratigan, defending the opposition, said he thought the criteria which the ZBA must consider didn’t meet the law, that there is no hardship involved, since the land could be used for other purposes, and that an assisted living facility placed there would violate the spirit of the ordinances.

After the public hearing was closed the discussion among the ZBA members went on for some time, the meeting ending after 10 p.m. with parties on both sides of the question observing. At one point, Sylvester told the observers:”This is a chance for you to know how hard this is....” Finally Ericson made the motion to deny, which reads “Having found that the criteria have not been met, I vote to deny....” Taylor stuck to his guns, repeating what he had said before, that since this land has been taxed as commercial property for over 50 years, it should be deemed commercial.

The ZBA on Nov. 20 at 7 p.m. in the Town Hall will hear a second appeal from the Nadeaus, this one relative to the Aquifer and Wellhead Protection Overlay District regulations which could be pertinent to their case should court appeal be made.

SELECTMEN MEET

When the selectmen met on Oct. 19, Jason Berendtson and his attorney, Scott Hogan, came in to discuss what might be developed on Berendtson’s land along Route 155 since the Zoning Board of Adjustment denied a variance for an assisted living facility to be built there.

Berendtson said he needs to do something which will bring in more revenue than storing boats in the former chicken houses, since the land is taxed commercially. They discussed the workforce housing concept, which can be built anywhere in town, following a court order.

Madbury has no zoning allowing workforce housing, a relatively new concept legislated in Concord lately and required by state law. It allows a developer to seek recourse from the court if not given permission by a town to build such housing. Uses permitted here in the Residential/Agriculture zone include single and two-family residences, general farming (horticulture, floriculture, dairying, livestock and poultry raising, the raising of animals for other purposes) and tourist homes.

“I have to consider every option for the use of this property,” Berendtson said. His father has suggested that he re-activate the chicken farm. There is also the potential of going to the Town Meeting to have the area re-zoned commercial. “As`time goes on, what with the expenses related to the plans for the assisted living facility, we’ll have less money to put into whatever project we decide on,” he stated.

In other business, selectman Jay Moriarty reported that he is pleased with the progress of the work on the Nute Road bridge. Apparently the state is also, since in the last paragraph of an Oct. 17 letter from the New Hampshire Municipal Highways Engineer Nancy J. Mayville states:”The Town is to be commended, particularly Joe Moriarty, on how well you have handled this bridge issue.”

This “repair” has an estimated 10 to 15 year design life and the town is programmed in Fiscal Year 2021 in the State Aid Bridge Program for a replacement bridge estimated to cost $550,000 - hopefully 80 percent to be state-funded.

GREAT BAY

On Nov. 1 Peter Wellenbwerger, Great Bay waterkeeper and former manager of the Great Bay Estuarine Research Reserve, will describe the resource which is the Great Bay and report on its health as the first of three lectures relating to the nitrogen issues in the bay.

This event will take place in the Madbury Town Hall from 7 to 8:30 p.m. and is open to the public free of charge.

11 a.m. - at the library - Children’s Author Jennifer A. Ericsson will read from her books, and will be available to answer questions and autograph copies of her books, which include “No Milk!” and “Whoo Goes There ?”